There was a little noticed bombshell in Washington’s waterboarding melodrama last week. And it wasn’t Nancy Pelosi’s implosion in a Capitol Hill press room, where she yet again tried to explain her inexplicable failure to protest the CIA’s “torturing” of detainees. No, this one detonated in the hearing room of the House Judiciary Committee. There, Attorney General Eric Holder inadvertently destroyed the warped basis for his claim that waterboarding, as administered by the CIA, amounted to torture.

Dan Lungren, California’s former state attorney general, and Louie Gohmert, the former chief judge of a Texas appeals court. The two congressmen highlighted a fatal flaw in Holder’s theory. Moreover, they demonstrated that — despite having accused the CIA and the Bush administration of war crimes by cavalierly branding waterboarding as “torture” — the attorney general has still not acquainted himself with the legal elements of a torture offense, particularly the required mental state. This is remarkable, given that Holder’s own department explained these elements less than a month ago in a federal appeals court brief.

Rep. Lungren pointed out that if the attorney general truly believes “waterboarding is torture,” he must also think we torture our own Navy SEALs and other special-operations personnel when we waterboard them as part of their training. “No . . . not in the legal sense,” countered Holder. You see, said he, it’s “a fundamentally different thing,” because

we’re doing something for training purposes to try to equip them with the tools to, perhaps, resist torture techniques that might be used on them. There is not the intent to do that which is defined as torture — which is to inflict serious bodily or mental harm. It’s for training. It’s different.

But it’s not different because “it’s for training.” Look at the torture statute (Sections 2340 and 2340A of the federal penal code) and try to find a “training” exception. There isn’t one. What removes an act from the ambit of torture (besides lack of severe pain) is intent. Lungren pressed this point, and Holder admitted that the training was “not torture in the legal sense because we’re not doing it with the intention of harming these people physically or mentally.” Intent, he acknowledged, was the key question.

Then, Lungren pounced. The CIA interrogators who questioned top al-Qaeda captives like Khalid Sheikh Mohammed and Abu Zubaydah intended no more harm to them than Navy instructors intended to their SEAL trainees. In fact, we know that the CIA went to great lengths, under Justice Department guidance, precisely to avoid severe harm. Their purpose, Rep. Lungren observed, was to “solicit information,” not to inflict torture.

When Rep. Gohmert followed up on the issue of intent, it became starkly apparent that our attorney general is either badly ill-informed about the law, or simply willing to misstate it. Gohmert asked: “If our officers, when waterboarding, had no intent to do permanent harm and, in fact, knew absolutely they would do no permanent harm to the person being waterboarded, and their only intent was to get information to save people in this country, then they would not have tortured, under your definition. Isn’t that correct?”

Holder summarily rejected this assessment, lamely attempting to fend it off by saying it would depend “on the intention of the person.” But of course, Gohmert had already stated the intention, very exactingly, in his hypothetical. In a corner again, Holder blundered. Whether Gohmert’s example would constitute torture, he surmised, suddenly depended not so much on the intention of the officers but on whether their act (i.e., waterboarding) would have the “logical . . . result” of “physically or mentally harm[ing] the person.”

Gohmert demurred, asserting: If “someone has to believe that they are doing harm to someone in order to . . . torture, then if . . . you knew without any question there was no harm being done, then there’s no torture.”

Holder replied,

No, I wouldn’t say that. . . . You can delude yourself into thinking that “what I’m doing is not causing any physical harm, it’s not causing any mental harm,” and somebody, a neutral trier of fact . . . could look at that and make the determination that, in spite of what you said, that what you have indicated is not consistent with the facts, not consistent with your actions, and therefore you’re liable under the statute for the harm that you caused.

That is completely wrong. What Holder described is the legal concept of a “general intent” crime. Most crimes fall into this category. To find guilt, all the jury (the “neutral trier of fact”) has to determine is (a) that you knew what you were doing (i.e., you intended to shoot the gun or rob the bank — you didn’t do it by mistake), and (b) the result was the logical outcome that anyone who performed such an act should have expected.

To state the matter plainly, the CIA interrogators did not inflict severe pain and had no intention of doing so. The law of the United States holds that, even where an actor does inflict severe pain, there is still no torture unless it was his objective to do so. It doesn’t matter what the average person might think the “logical” result of the action would be; it matters what specifically was in the mind of the alleged torturer — if his motive was not to torture, it is not torture.

The bottom line is, Rep. Lungren skillfully steered Attorney General Holder into the truth: As a matter of law, CIA waterboarding — like the same waterboarding actions featured in Navy SEALs training — cannot be torture because there is no intention to inflict severe mental or physical pain; the exercise is done for a different purpose. When Rep. Gohmert’s questioning made it crystal clear that Holder’s simplistic “waterboarding is torture” pronouncement was wrong, the attorney general — rather than admitting error — tried to change the legal definition of torture in a manner that contradicted a position the Justice Department had just urged on the federal courts. It seems that, for this attorney general, there is one torture standard for Bush administration officials, and another one for everybody else.

Rep. Dan Lungren: You don’t disagree with my argument though that having them on U.S. soil at least gives them a stronger opportunity to argue that they have a full panoply of Constitutional rights vis a vis being held in the United States — at least that’s been the traditional view of the federal courts, correct?
Attorney General Eric Holder: I think they could certainly argue that, but if you look at the way the courts have progressively dealt with the detainees at Guantanamo, the progression of it is pretty obvious that although they were not on American soil, they were getting more and more rights given to them starting with habeas and Hamdan and cases like that.

Lungren: We eliminate any question by bringing them to the United States as opposed to sitting in Guantanamo.

Holder: I’m not sure about that. I’m not sure.

Lungren: Well, they certainly don’t have a weakened position, do they?

Lungren then switched gears to a line of questioning aimed at clarifying the Obama Justice Department’s definition of torture. In one of the rare times he gave a straight answer, Holder stated at the hearing that in his view water-boarding is torture. Lundgren asked if it was the Justice Department’s position that Navy SEALS subjected to waterboarding as part of their training were being tortured.

Holder: No, it’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally, all we’re trying to do is train them –

Lungren: So it’s the question of intent?

Holder: Intent is a huge part.

Lungren: So if the intent was to solicit information but not do permanent harm, how is that torture?

Holder: Well, it… uh… it… one has to look at… ah… it comes out to question of fact as one is determining the intention of the person who is administering the waterboarding. When the Communist Chinese did it, when the Japanese did it, when they did it in the Spanish Inquisition we knew then that was not a training exercise they were engaging in. They were doing it in a way that was violative of all of the statutes recognizing what torture is. What we are doing to our own troops to equip them to deal with any illegal act — that is not torture.

We’re training our troops to deal with illegal acts? Can you imagine this guy in combat?

Rep. Louie Gohmert (R-Texas), a former judge, continued the “intent” line of questioning in an attempt to make some sense of the attorney general’s tortured logic.

Rep. Louie Gohmert: Whether waterboarding is torture you say is an issue of intent. If our officers when waterboarding have no intent and in fact knew absolutely they would do no permanent harm to the person being waterboarded, and the only intent was to get information to save people in this country then they would not have tortured under your definition, isn’t that correct?
Attorney General Eric Holder: No, not at all. Intent is a fact question, it’s a fact specific question.

Gohmert: So what kind of intent were you talking about?
Holder: Well, what is the intention of the person doing the act? Was it logical that the result of doing the act would have been to physically or mentally harm the person?
Gohmert: I said that in my question. The intent was not to physically harm them because they knew there would be no permanent harm — there would be discomfort but there would be no permanent harm — knew that for sure. So, is the intent, are you saying it’s in the mind of the one being water-boarded, whether they felt they had been tortured. Or is the intent in the mind of the actor who knows beyond any question that he is doing no permanent harm, that he is only making them think he’s doing harm.

Holder: The intent is in the person who would be charged with the offense, the actor, as determined by a trier of fact looking at all of the circumstances. That is ultimately how one decides whether or not that person has the requisite intent.

Once again, this leaves me shaking my head while wondering if Liberalism is indeed a mental disorder. Are these people honest about any issue? It would seem that liberal ideology is grounded by talking points and deception, being recreated by the moment. Spinning at the speed of sound…

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Keemo,

We can sum this up very simply.

In the liberal mind, if they like it, if they have done it, then it is OK. If you like it or you have done it, it is not OK. It is the old “Do as I say, not as I do” meme conjoined with the “Don’t look at the man behind the curtain” meme.